This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







State of Minnesota,





Keith Albert Faircloth,




Filed May 25, 2004


Lansing, Judge


Hennepin County District Court

File No. 01099567



Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and


Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)


David T. Redburn, Suite 207, 8525 Edinbrook Crossing, Brooklyn Park, MN  55443 (for appellant)


            Considered and decided by Peterson, Presiding Judge; Lansing, Judge; and Halbrooks, Judge.


U N P U B L I S H E D   O P I N I O N


            On appeal from his conviction for being a felon in possession of a firearm, Keith Faircloth challenges both the admissibility of statements he made to police without the benefit of a Miranda warning and the use of his prior conviction for impeachment purposes.  Because the record supports the district court’s rulings, we affirm.


Minneapolis police executed a search warrant at Keith Faircloth’s house and seized, among other items, a .22-caliber semiautomatic handgun.  The information in the affidavit supporting the search warrant came from a police interview of Faircloth, who was a material witness to the shooting of his roommate on the morning of October 19, 2001.  A man wearing a delivery uniform walked up to Faircloth’s house shortly before 10:00 a.m. and knocked on the door.  One of Faircloth’s roommates answered the door and alerted Derrick Kimmons, another roommate, that a package had arrived for him.  When Kimmons came to the door, a struggle ensued that ended with the man shooting Kimmons in the chest.

Faircloth, who was upstairs taking a bath, heard the scuffle, looked down the stairs, and saw an unknown person.  He then went back into the bathroom, broke through the window, and jumped out wearing only a towel.  Faircloth ran to a neighbor’s house for help.

One of Faircloth’s neighbors testified that he saw a man in a delivery uniform shoot Kimmons and then flee through the alley.  He also saw a man, later identified as Faircloth, chase the shooter wearing only a towel.  The neighbor indicated that he saw a black gun tucked inside the back of the towel.  And, from his front porch, he and his mother saw the man hold the gun in his right hand behind his back as he stood in the street.

When police arrived, Kimmons was lying on the kitchen floor and Faircloth had cuts on his forearm and on both hands.  Both men were taken to Hennepin County Medical Center (HCMC) for treatment.  Following standard procedure, a police officer met Faircloth at HCMC and sat with him while he was treated.

The officer then took Faircloth to the police station, to be interviewed as a witness to Kimmons’s shooting.  Faircloth was placed in an interrogation room with the door closed, again pursuant to standard procedure.  Faircloth waited alone in the interrogation room for approximately two and one-half hours, while the police finished interviewing other witnesses to the shooting.  During that time, Faircloth was escorted to the bathroom twice and was given a cup of coffee.

Faircloth was interviewed by two sergeants, who told him at the outset that they were investigating only the shooting.  One of the sergeants said, “First things first.  We are not the dope police.  Okay.  My partner and I are in the homicide unit . . . . As I told the other people in here today, we need to find out the truth here because the bottom line is somebody got shot.”

After Faircloth recounted the events surrounding the shooting, the sergeants told him that witnesses had seen him with a gun.  Faircloth denied having a gun.  But when one of the sergeants told him that they intended to conduct a warrant-authorized search of his house and asked what they would find, Faircloth told her that they would find a .22- or .25-caliber gun in a locked case under a fish tank.  Faircloth stated that he was holding the gun for a friend.  He also admitted that he was involved in drug dealing and told the sergeants where the drugs were and that they would find money in the house.  During the interview, Faircloth was given some food, his medications, and something to drink.  After the interview the police gave him a ride to his brother’s house.  The district court found that Faircloth was interviewed for one hour and eleven minutes and was not given a Miranda warning before or during the interview. 

While executing a search warrant at Faircloth’s house later that night, officers found the handgun Faircloth had described, along with rounds of ammunition, several .22-caliber magazines, and $12,000 in cash.  The state charged Faircloth with one count of prohibited person in possession of a firearm in violation of Minn. Stat. § 624.713, subd. 1(b) (2000). 

At a contested Rasmussen hearing, Faircloth moved to suppress the statements he made to the police, arguing that the statements were inadmissible because he was in custody during the interview and was not given a Miranda warning.  The district court denied the motion.  Before trial, the parties stipulated that Faircloth is a felon and that he is prohibited from possessing a firearm.  During trial, both sergeants testified about the statements Faircloth made, and a tape of Faircloth’s interview was played for the jury.  Faircloth testified, and the district court allowed the state to impeach Faircloth with his prior conviction of attempted controlled-substance crime, reasoning that the prior conviction would allow the jury to “evaluate [Faircloth’s] credibility based on the whole person.”

The jury found Faircloth guilty as charged.  The district court sentenced him to the mandatory minimum sentence and imposed a fine.  This appeal follows.



            Faircloth first argues that the district court committed reversible error by denying his motion to suppress, because the statements he made to the police were obtained during custodial interrogation without the benefit of a Miranda warning.  We disagree.

Police are required to give a Miranda warning only during custodial interrogations.  State v. Hince, 540 N.W.2d 820, 823 (Minn. 1995) (citing Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966)).  For Fifth Amendment purposes, a person is “in custody” if a reasonable person under the circumstances would believe that his or her freedom was restrained to a degree comparable to that associated with a formal arrest.  State v. Champion, 533 N.W.2d 40, 43 (Minn. 1995); see also Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 714 (1977) (holding right to Miranda warning attaches only if “there has been such a restriction on a person’s freedom as to render him ‘in custody’”). 

In determining whether a person is “in custody,” we examine the totality of the circumstances and apply an objective test, namely, whether a reasonable person in the situation of the person being questioned would have understood that he or she was in custody.  State v. Miller, 573 N.W.2d 661, 670 (Minn. 1998).  There is no bright-line rule for determining custody.  Instead, in reviewing the totality of the circumstances we consider many factors, including (1) where the interrogation occurred, (2) how long the interrogation lasted, (3) how many police officers were present, (4) whether the officers told the person being questioned that he or she was not under arrest and was free to leave, (5) whether the person being questioned was questioned as a suspect or a witness, (6) whether the person made any incriminating statements, (7) whether the person was restrained with actual physical restraints or the equivalent of an actual restraint (drawn weapons or a guard standing by the door, for example), (8) how the person got to the place of questioning, and (9) whether the person was allowed to leave without hindrance after questioning.  See, e.g., State v. Staats, 658 N.W.2d 207, 211-12 (Minn. 2003) (listing factors for determining custody and non-custody). 

            Whether Faircloth’s statements were admissible turns on whether Faircloth was in custody when he was interrogated.  The question of custody is a mixed question of law and fact.  State v. Wiernasz, 584 N.W.2d 1, 3 (Minn. 1998).  We review the district court’s findings relating to the circumstances of the interrogation under a clear-error standard.  Id.  But we make an independent review of the district court’s determination on custody and the need for a Miranda warning.  Id.  Considerable, but not unlimited, deference is granted to a district court’s fact-specific resolution of the custody issue when the proper legal standard is applied.  Champion, 533 N.W.2d at 44.  

            The district court concluded that Faircloth was not in custody, and a Miranda warning was not, therefore, required.  The district court based its conclusion on findings that (1) Faircloth was not the subject of the investigation but was merely a material witness; (2) he was told at the outset that the police were focusing on the shooting of his friend; and (3) although he was not told that he could leave, he was not placed under arrest.  The court also found that Faircloth’s movement was restrained but concluded that the restraint was not of the degree associated with formal arrest.  Based on our review of the record, we conclude that the district court’s findings are supported by the record and are not, therefore, clearly erroneous.

            Our independent review of the district court’s legal determination that Faircloth was not in custody yields the same result.  When the person being questioned is not under arrest before questioning, we consider all the surrounding circumstances to determine if a reasonable person in that person’s situation would have believed that the restraints on his or her freedom of movement were comparable to those associated with a formal arrest.  Hince, 540 N.W.2d at 823.  Faircloth was not the subject of the investigation and was told at the outset that he was being questioned only as a witness to the shooting of Kimmons.  Even after Faircloth admitted to having a gun, the questioning continued to focus on the shooting.  The questioning lasted a little over an hour and was conducted by only two sergeants.  There were no drawn guns or officers standing by the door to keep him in the room.  The tape of the interrogation contains no evidence of any intimidation or a show of force by the police.  On the contrary, during the interrogation Faircloth was given food, his medications, and something to drink.  Although he was not told that he could leave, he was not told that he could not leave.  Nor was he restrained or otherwise prevented from leaving.  And, after the interrogation ended, police gave Faircloth a ride to his brother’s house.  Based on the totality of the circumstances, we conclude that a reasonable person in Faircloth’s position would not have believed that the restraints on his freedom of movement were comparable to those associated with a formal arrest and that he was, therefore, in custody.

Faircloth argues that he was in custody because (1) he was not told that the questioning was voluntary, that he was not under arrest, or that he could leave at any time; (2) he was met at the hospital by a uniformed police officer who stayed with him during treatment and later transported him to the police station; (3) once at the station, he was placed in an interrogation room that appeared to be locked, was kept waiting for over two hours, had to knock on the door to get a drink of water, and was escorted to the bathroom; (4) the police initiated contact and used deceptive tactics during questioning; and (5) the interrogation was conducted in a police-dominated atmosphere. 

But Faircloth never complained about being taken to the police station for questioning and he never asked to leave.  Indeed, the district court found that he agreed to be transported to the hospital and, by implication, to the police station afterward.  Both at the hospital and at the police station Faircloth was treated according to standard procedure, like any other witness.  That the interrogation took place in a police-dominated-atmosphere and the police used deceptive tactics during questioning, as the district court found, does not require a determination that the interrogation was custodial.  A person is not in custody merely because there are coercive aspects to the interrogation.  State v. Sirvio, 579 N.W.2d 478, 481 (Minn. 1998) (stating that mere fact that interrogation occurs at police station does not require determination that interrogation was custodial).  Any questioning of a suspect by a law-enforcement officer “will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime.” Id. (quotation omitted).  The question is not whether the questioning took place in a coercive environment but whether, under all the circumstances, a reasonable person in the suspect’s position would believe that there was a restraint of his or her freedom of movement comparable to that associated with a formal arrest.  Id.; see also Mathiason, 429 U.S. at 495, 97 S. Ct. at 714 (quoting Hince, 540 N.W.2d at 823-24) (stating that “[a] noncustodial situation is not converted to one in which Miranda applies simply because a reviewing court concludes that, even in the absence of any formal arrest or restraint on freedom of movement, the questioning took place in a ‘coercive environment’”).

Although Faircloth’s freedom of movement was somewhat restrained pursuant to standard procedure for interviewing a material witness, we conclude that the interrogation was not custodial.



Faircloth argues that because he stipulated to being a felon prohibited from possessing a firearm, the district court abused its discretion by allowing the state to impeach his testimony through the use of his 1995 conviction of attempted controlled-substance crime.  We do not agree. 

We review a district court’s ruling on the use of a defendant’s prior conviction for impeachment purposes under an abuse-of-discretion standard.  State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998).  Prior convictions may be admitted to impeach a defendant’s testimony when the underlying offense is less than ten-years old and is punishable by imprisonment in excess of one year, and the district court “determines that the probative value of admitting this evidence outweighs its prejudicial effect.”  Minn. R. Evid. 609(a)(1).  To determine whether the probative value of a prior conviction outweighs its prejudicial effect the district court should consider

(1) the impeachment value of the prior crime, (2) the date of the conviction and the defendant’s subsequent history, (3) the similarity of the past crime with the charged crime (the greater the similarity, the greater the reason for not permitting use of the prior crime to impeach), (4) the importance of defendant’s testimony, and (5) the centrality of the credibility issue.


State v. Jones, 271 N.W.2d 534, 538 (Minn. 1978); see also Ihnot, 575 N.W.2d at 586 (reaffirming the Jones test).  

Citing State v. Davidson, 351 N.W.2d 8 (Minn. 1984), Faircloth first argues that his prior conviction is inadmissible for impeachment purposes because he stipulated to being a felon prohibited from possessing a firearm.  In Davidson, the supreme court concluded that a defendant in a prosecution for being a felon in possession of a firearm “should be permitted to remove the issue of whether he is a convicted felon by stipulating to that fact.”  Id. at 11.  But the court expressly cautioned that “the door should be left open so that in appropriate cases where the probative value of the evidence outweighs its potential for unfair prejudice, the evidence may be admitted.”  Id.  Contrary to Faircloth’s claim, therefore, Davidson specifically allows the use of prior convictions in appropriate cases. 

After considering the Jones balancing factors, the district court properly concluded that this was an appropriate case to allow the use of a prior conviction for impeachment purposes.  See State v. Lund, 474 N.W.2d 169, 172 (Minn. App. 1991) (requiring district courts to demonstrate exercise of discretion on the record).  First, although convictions of controlled-substance crimes do not directly relate to the veracity of a defendant, State v. Zernechel, 304 N.W.2d 365, 366 (Minn. 1981), Faircloth’s conviction had impeachment value because it “aid[ed] the jury by allowing it to see the whole person and thus to judge better the truth of [Faircloth’s] testimony.”  State v. Gassler, 505 N.W.2d 62, 67 (Minn. 1993) (quotations omitted). 

Second, the conviction was not only well within the ten-year limit set by Minn. R. Evid. 609(b) but it was also fairly recent because it occurred only five years before the current offense.  See State v. James, 638 N.W.2d 205, 211 (Minn. App. 2002) (approximately six-year-old conviction held to be “fairly recent”), review denied (Minn. Mar. 27, 2002).

Third, the controlled-substance conviction is not similar to the current crime of prohibited person in possession of a firearm.  See id. (noting that elements and nature of controlled-substance crime and crime of prohibited person in possession of firearm are different).  Accordingly, there was no heightened danger that the jury would use the prior conviction substantively rather than for impeachment purposes only.  Id. (stating that “[t]he greater the difference between a prior crime and the current offense, the less prejudicial the prior conviction is for impeachment purposes”). 

Fourth, Faircloth’s testimony and credibility were central to his defense because his testimony contradicted the testimony of the state’s witnesses and provided an alternative explanation for his possession of the gun.  When a defendant’s credibility is central to his or her defense, “a greater case can be made for admitting the impeachment evidence, because the need for the evidence is greater.”  Id. at 212 (quotation omitted). 

Because the Jones factors are satisfied, the district court did not abuse its discretion by allowing the state to introduce evidence of his prior conviction for impeachment purposes.